a. Commanders should remain alert for signs of future prohibited activities. They should intervene early, primarily through counseling, when observing such signs even though the signs may not rise to active advocacy or active participation or may not threaten good order and discipline, but only suggest such potential. The goal of early intervention is to minimize the risk of future prohibited activities.

– these are all feel good guidelines. The reality is that Commanders (and other unit leaders) remain alert for signs of bad morale and things that affect the mission. They usually don’t see “what someone does off duty” as something that falls into those categories. What they don’t get is that these gang members are 1) smart enough to conceal their affiliation, 2) learning trades they can use to help the gang, and 3) using their military experience and exposure to access the logistics pipeline to help drug and weapons trafficking endeavors, etc.

– The military is not and is not designed to be engaged in anything resembling early intervention or minimizing the risk of future prohibited activities. Those are activities for communities where there are youth gangs who can be deterred from crime. All military members are adults, and those who are gang members and military service members are far from intervention time.

b. Examples of such signs, which, in the absence of the active advocacy or active participation addressed in paragraphs 8.a and 8.b are not prohibited, could include mere membership in criminal gangs and other organizations covered under paragraph 8.b.

mostly explained by active participation in prohibited groups by fundraising; demonstrating or rallying; recruiting, training, organizing, or leading members; distributing material; knowingly wearing gang colors or clothing; having tattoos or body markings associated with such gangs or organizations; or otherwise engaging in activities in furtherance of the objective of such organizations that are detrimental to good order, discipline, or mission accomplishment or are incompatible with military service

These do not appropriately represent the breadth of gang crimes that should be included in “criminal gang offense.” They appear more like some of the indicators used by Departments of Correction and a few police departments to confirm gang membership. From Tennessee:

At the time the directive was initially published in 1969, the DoD was concerned with the infiltration of anti-war and anti-military organizations. The directive focused on dissident and protest activities within the military, and especially on activities such as underground newspapers, on-post demonstrations, and serviceman organizations.

In 1986, the Secretary of Defense updated the directive. The directive’s language prohibited “active” participation in “extremist organizations.” This comes from language in Executive Order (EO) 11,785 issued in 1953, during the height of the Cold War, when the government feared Communist infiltration. It was later changed to forbid designating any groups as “totalitarian, fascist, Communist, or subversive” and forbade any circulation or publication of a list of such groups.

sabotage, espionage, treason, or sedition, or attempts thereat or preparation therefore, or conspiring with, or aiding or abetting, another to commit or attempt to commit any act of sabotage, espionage, treason, or sedition

* * *

Advocacy of use of force or violence to overthrow the government of the United States

So when the explanation for the new Instruction explains that:

Signs could also include possession of literature associated with such gangs or organizations, or with related ideology, doctrine, or causes. While mere membership or possession of literature normally is not prohibited, it may merit further investigation and possibly counseling to emphasize the importance of adherence to the Department’s values and to ensure that the Service member understands what activities are prohibited.

I am tempted to ask what they are talking about when it comes to literature. Are they talking about Gang/STG documents: rosters, procedures, bylaws, codes, etc.? What about Gang/STG commercial publications? What about illustrations or artwork?

Unfortunately, these are the same questions that would allow a defense attorney to claim the instruction is vague and over-broad, and that’s an indication that more thought should be invested in it in the first place.